Friday, August 31, 2012

First, I didn't even notice the milestone on August 21. It has been a year since this blog began. It has been a learning experience to see how this works. At first, you hope one person comes to the site, then two, then ten and you check every five minutes. Now, I just check every ten minutes. Thank you to the tens of thousands of visitors in the first year. Please keep visiting, commenting, and emailing.

Now, to the meat of the post. What is identity theft? Is it forging a check in someone else's name? Is it stealing someone's credit card and using it? Is it just pretending to be someone else?

Identity theft crimes fall into the category of white collar crimes. These are crimes that are financially motivated and generally non-violent. We usually think of an employee embezzling funds from a company when we think of white collar crimes. Today most of these crimes are identity theft. It's on the rise and more and more people will be victims in their lifetime. Just like me. It leads to lost money, lost time spent dealing with the problem, and possibly ruining your credit. In 2008, an estimated 11.7 million people were victims according to the Department of Justice.

Article 190 of the New York State Penal Law contains many of the fraud crimes related to identity theft. The crimes range from issuing a bad check (writing a check the issuer knows will bounce) to usury (outrageous loan practices) to possessing a skimmer (a device used to obtain another's credit card information without their knowledge or consent). It also defines identity theft.

Identity theft is when a person "knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby: (1) obtains goods, money, property or services or uses credit in the names of such other persons or causes financial loss to such person or another..." P.L. Section 190.78. The punishment ranges from a misdemeanor through a "D" Felony, depending on how much money was involved and whether the person has a prior conviction for a similar crime.

Seems simple. Someone pretends to be me and uses my info to gain a benefit for themselves. But how do we prove it? Imagine this recent scenario. A mother is on her deathbed. She has three children. One of the children lived with the mother in her years of decline and was allowed to use her mother's credit card in the past to help her obtain groceries and other products. But now the mother is incapacitated with a disease that affects her physicaly and mentally. The day before the mother dies, the adult child goes to a store and charges $20,000 worth of credit. Now this has to be paid from her estate and understandably it seems wrong. But how can we ever prove she did not have permission to use the card from the mother when the mother had capacity?

What about what happened to me? Some person in another state gets my debit card info and uses it at a hotel. We can get the surveillance videos from the hotel and the signature card. Then we find the person and interview. Get a search warrant for the home and computer. If the evidence is there, we can arrest and prosecute.

But what if that person had used my information at Amazon.com? We can find the IP address that made the purchase, but we can never say with certainty who made the actual purchase. We can never say who the person was sitting at the computer that day using the card. Anyone in the house could have used the computer.

The prosecution of these cases is difficult. We can only make arrests on cases in which there is probable cause to believe the defendant committed the offense. To do that we need evidence. As we know from every major scandal, stolen money is an emotionally driven crime. People want someone held accountable. They don't want to hear that we don't have enough evidence. Even if we all agree who did it, that doesn't mean we can charge him without admissible evidence. Like any case, we must balance the victim's wishes with the evidence. Embezzlement crimes are simpler. There is always a paper trail of missing or stolen money that will lead to the person who stole it.

So to the person in Michigan who spent two days being me, the investigation is underway. The bad thing about the internet for prosecutors is that it is difficult to know who was at the keyboard at a given time. The good thing? Someone always leave a trail. Did you?

Wednesday, August 29, 2012

There are two telephone calls you do not want to receive on vacation - 1) that someone was sick or hurt, or 2) that someone stole your identity.

Last week, some NASCAR loving soul pretended to be Prosecutor's Discretion for a few days. This is not a slight against NASCAR, but a truth. See, this fan was so enamored with the the sport that he used my debit card to spend some money at a NASCAR track in Michigan. He (I'm not sure, but I'm assuming the culprit was male) then got so tired after pretending to be me all day (most days I'm exhausted after it), that he booked a room under my name.

Poor fellow must have been pooped after such a hard day.

The only way I learned of it was a timely phone call from the watchful eyes of my bank. The major banks all have fraud monitoring departments. They watch for unusual activity and once they saw numerous transactions in Michigan (I reside in New York) they called me to check in.

I was on vacation anyway so I figured it was them checking in on my use while on vacation. Turns out, the use was thousands of miles away from where I was. If not for the phone call, I don't know when I would have discovered the fraud.

The kicker? My debit card was tucked safely in my wallet, but somehow they were still using it. I'm tempted to open a file and start sending subpoenas out all over the country. But I know conducting my own investigation where I've been the victim is improper. Plus, the problem with identity theft like this is there is very little chance the offenders will be caught. It is so easy to mask a person's identity on the internet and also easy to deny culpability.

Most identity thefts we prosecute are for people who steal licenses and credit cards and use them at stores. State DA offices usually do not have the resources or knowledge to track interstate investigations.

Oh, and this is the second time this has happened to me. The first was years ago when someone went to a ski resort using my card. I guess people just like letting me pay for vacations. But this doesn't compare to my brother who once received a tax bill from Kentucky for tens of thousands of dollars. The problem was that he never lived in Kentucky or worked there. It turned out an illegal immigrant had been using his name and social security number to work for years, without paying taxes.

Identity theft is rampant and only increases with technological advances. On Friday, I'll discuss certain identity theft related crimes and how we prosecute them.

For now, despite all the bad press the big banks get, I appreciate that they are looking out for me.

Monday, August 27, 2012

Remember those personal essays you had to write in elementary school? The time-fillers you dreaded on the first day back from vacation? Well, here's my version of it from this summer:

Growing up, we took a vacation seemingly every summer. I remember my mother waking me up in the early morning hours, telling me to get ready because we were leaving in fifteen minutes. The suitcases were packed and the station wagon or minivan had been loaded since the day before. The only thing missing at five in the morning were the travelers.

And we marched in, one by one. Seven of us total made the annual pilgrimage to various battlefields, aunt's houses, Freedom Trails, and beaches. Sometimes we brought along a cousin, bringing the total to eight occupants in a seven person van filled with luggage. I don't know how my parents survived those trips.

Reality tells us that we all must grow up, and so the inevitable happened with my family. The two oldest siblings acquired jobs and started college, and couldn't just leave for two weeks in the summer. Still my parents packed up the three youngest and headed South, East, or West. But the cracks in the foundation were visible by then, signaling the ritual would soon crumble.

Like those beautiful sunsets over the ocean, it must come to an end. My siblings began to marry off and create their own families, their own traditions. I moved away for college, came home for law school, and then moved away again for a job. There was no special decree declaring the end of childhood. No one ever told me it was time to be an adult. The benefit of life's rearview mirror allow me to say my childhood ended when those family vacations stopped. When everyone became too busy to spend a week or more together away from the lives they were creating.

But like the sunset, the tradition was hiding, waiting to be discovered when the night faded. And so in 2007, with me trying to find my way in life, we tried to reignite the flames of our youth. We trekked across the country to a beach house, where we filled that unsuspecting house to capacity with not only the amount of people but the large personalities that had developed. That successful vacation led us to try again this year.

We had increased our number to 22 - three more significant others had joined the family and four more children. An enormous house welcomed us, again not prepared for the noise my family can create. Jokes, laughter, chairs scraping against the floor, the blender mixing fruity drinks, the sound of seven children under ten years old running through the house mixed to rival the sound of an airplane taking off.

At times this past week, I took leave of my family and spent some time alone on a porch with my book. It's odd that you need to pull away from people to truly appreciate them. Instead of focusing on the book, I found myself reflecting on my family. How far we had all come since those first family vacations I can remember. My parents had five children, and each has a completely different personality spun from the family web my parents created.

My sisters are organizers. They make up the oldest and youngest members of the flock. The oldest is the unquestioned leader, no matter what we tell her. The youngest is the reminder. She ensures that no one forgets a date or a duty. The oldest boy takes care-free to another level. He never takes himself too seriously and, therefore reminds us that we shouldn't either. The middle boy provides the comedy. No matter how much I try to emulate it, my jokes just aren't as funny to the instant wit he provides. I guess I'm the moderator of the group. Each person operates independently, but when the five of us are together trying to recapture a little of the childhood we lost, it is obvious that we have thrived because of each other.

The waves of the ocean crashed against the shore, wiping a layer of sand each time. It's the same as the years to us. They pass, stripping away more and more of the childhood we remember. It happens gradually, in tiny unnoticeable chunks, until you look down and attempt to fathom what happened to the last twenty years. For one week this summer, I recreated what it was like to grow up in my family. Happy or sad, good or bad, we were together. The children and significant others only amplify that intense feeling of intimacy. The organism that is my family has absorbed each new person and grown into a being even greater than the seven of us originally were.

The best news of all? We don't have to wait five more years, even though some of us probably want to.

Wednesday, August 22, 2012

As I compose this quick post, my father and two brothers sit on couches around me, watching television and drinking their morning coffee. Children run through the giant house we rented on the beach. The waves crash against the shore just outside the window behind the male members of my family.

And I repeat, they are watching tv, increasing the volume with the children's noise. With ocean waves crashing behind them. They could be drinking their morning coffee watching that. To be fair, we spend the nights on the porch, sharing stories and jokes, with those ocean waves providing the score to our family musical.

But still, this is vacation. And where we came from, ocean waves are hundreds of miles away. Anyone else think this particular activity should be banned on vacation?

Monday, August 20, 2012

Still at the beach. Only two jellyfish stings so far to the family. But, like usual, I'm up early to get some things done before the day officially starts. Morning time is my most productive time.
I stumbled on this article that agreed and provides some insight on how to be more productive. Check it out here.

Remarkably, check out this previous post about the life of an ADA and see how I match up.

Friday, August 17, 2012

Dear faithful readers and new friends who have stumbled upon the site: I received an email this week from the American Bar Association. It asks for nominations to be included in their annual "Blawg 100 Amici," a collection of the 100 best blogs as voted on by readers. Here at prosecutor's discretion, we are an easy sort, not requiring too much of you, the reader. But you see, this is a presidential election year. The year when citizens must exercise their right to vote and help guide the course of this country. In the election spirit, I hope you'll consider nominating this blog. Check out the ABA's site and nomination form here. They have a few rules and discourage entries from:

Blawggers who nominate their own blawgs or nominate blawgs to which they have previously contributed posts.

Wives and husbands who nominate their spouses' blawgs.

Employees of law firms who nominate blawgs written by their co-workers.

Public relations professionals in the employ of lawyers or law firms who nominate their clients' blawgs.

Pairs of blawggers who have clearly entered into a gentlemen's agreement to nominate each other.

There will be plenty of time for those folks to vote after the nomination process. If you've ever learned something, enjoyed a story, commented, emailed me, laughed at the blog, found it accidentally when searching for appropriate court attire, or wanted to yell at me, get on over there and vote so we can share the blog with others. Post a link on your facebook, hit it up on twitter.

I'll be nominating some of my favorite blogs. As for me, I'm heading on vacation for a week. The day-to-day crime fighter suit needed to be dry cleaned and my family desperately needed some sun. And with telling you that, I just violated my own rule! There will be some posts next week, probably pictures to make those at work jealous. Thanks for reading.

Wednesday, August 15, 2012

A little delayed, but here are the stats from April through June. You'll see a reduced caseload this quarter. The reason is an increased caseload on a long-term gang investigation I'm dealing with that didn't come to fruition until after these stats. It's still top-secret, so I unfortunately cannot discuss it until it's over.

Total cases handled: 56 files

Number of pleas taken: 15

Number of cases closed after arrest but before indictment: 6

Main reason why: Insufficient Evidence

Number of cases where guns were used: 31

Saddest case: Two drive-by shootings by the same guys on the same night. At the first, 11 year old girls were threatened by the shooter not to come forward. At the second, a young man's finger was shot off. Luckily, that was the worst of the injuries. The reason? Gang warfare.

Oddest Facts: A woman claiming rape by a quadriplegic.

Youngest defendant: 15 (stolen car and then using it to commit robberies)

Monday, August 13, 2012

A barrier which separates the mundane from the Transcendent Reality. A true Wonderwall will always have a crack, or a slit or an opening which allows anyone a glimpse of what lies beyond the Wonderwall.

I peeked through the opening of the Wonderwall and saw a dim glimmer of Krishna.

Over the last two weeks, I've been transfixed by the Olympics. This isn't the first time, but it's the first time I've really understood them. Or understood why I was so transfixed. It's the dedication. It's the sacrifice. I truly appreciated each athlete and what their dedication to excellence means for themselves and for their country.

And it started me thinking. An Olympic athlete decides that they want to be the best at an early age. They find something they love and spend their life perfecting it. They sacrifice time with friends and family. They choose kale and swiss chard over a burger and fries. Maybe even a green shake in the morning filled with spinach over pancakes.

The band Beady Eye (made up of former members of Oasis) played at the Closing Ceremonies. They performed their hit Wonderwall. My wife asked what a wonderwall was. Neither of us knew so she asked Siri, who led us to the urban dictionary. And that was the above definition.

Once I heard it, I realized how perfect the song was for the Closing Ceremonies. That's what the Olympics are. It is a wonderwall. It allows us ordinary folk to view the transcendent through the cracks in it. It shows us what is possible if you have goals and the will to achieve them.

The older I get, the more I realize what's important in my life. I am a goal oriented person. Every year I write a list of personal and family goals and how I'm going to achieve them. Some I achieve, some I don't. I will never be an Olympic athlete, but I can show that Olympic dedication in my ordinary life. Dedicate myself to my family and friends. Dedicate myself to the work. And this past year, I've dedicated myself to writing.

It's something we can all do. Dedicate yourself to what's important to you. You'll soon realize that true happiness comes when you are doing what you love, and dedicating your time and life to it. Choosing the items that are important over those that used to be important won't even be a sacrifice then.

I've got a renewed dedication to my goals. I want to look back with joy that I spent my time with the people I loved doing what I loved. Stopping a lifetime of regrets starts with deciding what is important. Once that is decided, your choices will be guided by these goals. What others will consider sacrifice, you'll call dedication.

Want to run that first 5k? Well, you'll have to spend time running and eating right. What about that new job? Spend the time researching the job market and possible opportunities and maybe avoid checking those last links on espn.com. Work on the marriage? You'll have to cut back on softball and bowling leagues or ask your wife to join. Get out of credit card debt? You'll have to say no to some dinners with friends and those new clothes.

But it's all worth it because you've seen the wonderwall. You've seen the joy on the other side and what can be accomplished with a little sacrifice. So, enjoy Wonderwall by the original creators:

Friday, August 10, 2012

Killing six people and injuring over a dozen more garnered Loughner a life sentence without the possibility of parole this week. That doesn't sound like too much of a victory, but when you weigh it against the death penalty it sounds just fine indeed from his perspective.

Over a year ago, a judge in Arizona declared Loughner was incompetent to stand trial. This led to treatment in order to get him competent. I discussed the difference between competency and an insanity defense in a previous post. It took over a year, but through treatment, therapy, and medication, Loughner attained competency.

Then, he had to deal with the reality of what he did - collect guns and ammunition and set out to kill innocent people. He had to face the truth. He had to face his family. He had to face the victims.

This act provides closure to this case. Closure to the victims and their families. Everyone can move on from the legal proceedings. No one has to be put through a long, drawn-out trial with numerous experts weighing in on each side about the sanity of Loughner. No Court TV, CNN, or Today Show. Such a violent, attention seeking act will end quietly.

So if he's not competent to stand trial, how could he be considered sane when he committed the crimes you say?

Competency and sanity are two very different beasts. And there are many factors that weigh on both the defendant and prosecution when the plea discussion happens.

First, the defendant has to attain competency. He has to know what's going on around him. Competency has nothing to do with Loughner's mental state at the time of the crime. It has to do with his mental state at the time he's charged. Only after he is competent can his attorney have a frank discussion about the case with him.

Once he has competency (not in the legal sense, but enough so the attorney can talk to him rationally), the defense attorney will discuss strategy with him. There are only two defenses in every cases - I didn't do it or I did it, but . . .

The I didn't do it defense is the claim that witnesses are mistaken or lying. That clearly was not the case here. So Loughner had to rely on the second defense. I did it, but . . .

A few of the buts are :
- I did it but, the victim was going to kill me (self-defense)
- I did it but, someone made me do it (duress)
- I did it but, the devil made me do it (insanity)

The only viable defense here was insanity. Once decided, Loughner and his attorney had to do a cost benefit analysis. The cost was his life. The benefit was possibly walking away from the crimes due to the defense of insanity. This was close to impossible though. There was evidence of a thorough plan. Everything he did screamed intent and planning. Yes you have to be a little crazy to commit any crime like this (or any violent crime for that matter), but not always crazy under the law.

I'm not sure, but I imagine the prosecution spoke to each of the victims and families and they all signed off on the plea. No trial. No spectacle. Loughner spends the rest of his life in jail. Whether you agree with the death penalty or not, the resolution of this case seems fair.

Monday, August 6, 2012

This is what the police must deal with in 21st century law enforcement. Every move they make is recorded. Surveillance cameras record the street, cameras are in the police cars, and every person walking around has a video recorder on their phone.

I'm sure most police don't like having video cameras thrust into their face while they are doing their job. Just think about someone walking up to you in the middle of your work day and recording everything you did, waiting for you to mess up or maybe check those fantasy football stats on your work computer.

Most citizens probably don't like the fact that they are recorded 24 hours a day either. ATM cameras, store cameras, police cameras follow us everywhere we go. But let's face it, cameras keep both citizens and law enforcement honest.

Apps like these and citizens taking videos should make everyone think twice. The police have to keep this in the back of their mind when dealing with a citizen. Citizens must be aware that most of their interactions with police are probably being recorded too. Citizens should know their rights and police officers should too. A little extra vigilance on either side isn't necessarily a bad thing.

I'm off for training until Wednesday morning and then I'm teaching the newest crop of rookies at the police academy.

Friday, August 3, 2012

The best part of DA work is the flexibility. Our client is the state, not one individual. Therefore, we are not tied to the wishes of one person when thinking about the outcome.

However, like I've said before, the crime didn't happen to us. That's why there are certain ethical and statutory requirements we must follow with respect to the victims.

After a crime, it is our duty to inform the victim that there are groups and services in place. In my office, we have employees called victim advocates. If requested, they will sit down with the victim and explain restitution issues, counseling options, and generally how a case moves through the system. The path of a case is something an ADA should discuss as well.

The victim also has the right to know about certain proceedings, like the arrest, arraignment, bail proceedings, entry of a guilty plea, trial dates, sentencing dates, and the possible penalties.

If there is a parole hearing, the DA's office must notify the victim of their right to provide a statement to it. The victim can also request notification when the defendant is released following his sentence.

The DA does not need to consult the victim regarding plea offers in certain non-serious cases. Common sense tells us that this is the better practice though. These conversations range from relief that the victim does not have to come to court to indignation that the DA wants to offer a plea. In homicides, child cases, and certain others, we must consult the victim or their family about the plea.

Even though we don't have clients, we still have a responsibility to the citizens and the victim to have a direct and prompt conversation about the case events. In many of my cases, the victims don't have an opinion as to the outcome. I've heard the phrase "however the courts want to handle it" more often than any other.

But all victims should know they still have rights. Fore more information check out the links here and here.

Plea bargaining is about expediency. It allows the defendant reduced sentence exposure, a victim to move on without being cross-examined in public, and the court system to handle an incredible amount of cases, along with many other benefits. But when it comes down to it, the defense attorney, judge, and prosecutor were not the one robbed, shot, raped, burgled (yeah, that's a word), or killed. The defendant didn't kill my wife or child.

One of my colleagues told me, "if one of my family members were killed and the prosecutor brought me into the office and began telling me he wanted to offer a reduced plea, I would reach over the table and punch him."

Before conversations with the victim, I often think about what my reaction would be if the roles were switched. It helps me remember that we are dealing with people, not names in a file.

In an interesting twist, I find the higher level the offense, the more likely a victim or their family agree with a plea bargain. For some reason, harassment victims are the least likely to agree with a plea.

I'm going to use a murder case I handled as an example.

This murder case was already indicted and moving along to trial. About two weeks before the trial, the defense attorney called and told me his client is interested in a plea to manslaughter (reduced from murder) and in exchange would cooperate in some pending investigations. (Read about murders and manslaughters here).

The defendant was charged with shooting the victim five times. The defendant was part of a gang and he pretended to buy marijuana from the victim so that he could kill him as part of a gang war.

Sadly, it is a pretty typical homicide.

The defendant came in with his attorney and provided some good intelligence. That was step 1. He had something to offer us.

Step 2 was getting authorization from my boss and the big boss. We acquired that (in order to keep the paychecks coming in I'll keep the details of those conversations private).

The boss set one condition I'll share - the victim's family had to agree to the plea offer or no deal.

That takes us to step 3.

The victim left behind a wife of ten years and two young children. He also had an extremely religious and upset mother and hard-of-hearing grandparents. The wife and parents did not get along. I decided to have two meetings.

I first met with the victim's wife. She arrived at my office without her children, something I was praying for. You know how difficult it is to find babysitters at the last minute in the real world? Imagine if someone dropped their kids off with you unexpectedly at work.

The wife was well put together. Dark, straight bangs shielded the tops of her brown eyes. Gold bracelets jangled with her hands when she uses them to drive a point home. We sat across from each other. The homicide victim advocate from my office sat on my side. She had more experience and I wished she would guide the meeting. I know it's my responsibility though, so I started with the usual how are you doing stuff.

The conference room had a long, wooden table the color of caramel. The windows overlooked the holding center where the defendant awaited trial, an irony not lost on this ADA. The nine empty seats around the table made this impersonal. It's a room more suited for Gordon Gekko ravaging a company than seeking acquiesence for a plea.

I then framed the conversation. "The defendant wants to take a plea. We're only going to do that if you want it and agree to it. So I want to let you know what everything means and answer your questions."

Tears. More tears. More tears, interspersed with the clinking bangles.

I lay out the two options. Trial or plea to a lower charge. The sentences - murder means 25 to life and manslaughter means 25 without life.

I laid out the chance of success at trial. "We have a strong case. We definitely believe we can win. That being said, there's always the chance of losing at trial and then the defendant walks away at the end. We have two witnesses, but they might not show up or say what they said before. Or the jury can just feel bad because the defendant is eighteen."

She asked what I think. It's a question I hate. As a prosecutor, what do I think? It's a great deal. He's cooperating in some other cases and will still get 25 years. I told her he's cooperating, but not on what cases.

As a human what do I think? It made me sick.

She teetered on the edge. There was one other thing I had to tell her. It was about her husband. During the investigation, the police recovered over 40 pounds of marijuana from the victim's house, which was her house too. This was a set-up drug deal. All that evidence will be coming into the trial because drug dealing was the motive for the murder. She needed to know.

Tears and jangling bangles.

She knew what he was doing. She was enjoying the spoils of it. She didn't want to sit through a trial and have everyone else know what her husband was doing. She wanted the plea.

The meeting with the mother and grandmother was different. They liked to come in and show pictures of their child from his youth. They weren't interested in speaking about the case, only speaking about him. We listened and explained what was happening. We didn't tell them about their son's past. They didn't need to know.

The defendant pleaded guilty and received 25 years. He then backed out of cooperating and was charged with other cases. He will end up serving much more than that.

On Friday, I'll discuss what New York State Law says a victim's rights are with respect to a plea and sentence.